The Court Of Public Opinion

Have you ever wondered how police can stop you at a DUI roadblock (aka sobriety checkpoint)? Doesn’t the Constitution require them to have probable cause before stopping you? Yes and no, explains Lawrence Taylor who heads up a team of California DUI attorneys that specialize in DUI defense.

The Constitution of the United States clearly says that police cant just stop someone and conduct an investigation unless there are articulable facts indicating possible criminal activity. So how can they do exactly that with drunk driving roadblocks? Good question. And it was raised in the case of Michigan v. Sitz, in which the Michigan Supreme Court striking down DUI roadblocks as unconstitutional. In a 6-3 decision, however, the U.S. Supreme Court reversed the Michigan court, holding that they were constitutionally permissible.

Chief Justice Rehnquist began his majority opinion by admitting that DUI sobriety checkpoints do, in fact, constitute a seizure within the language of the Fourth Amendment. In other words, yes, it appears to be a blatant violation of the Constitution. However, he continued, its only a little one, and something has to be done about the carnage on the highways caused by drunk drivers. The minimal intrusion on individual liberties, Rhenquist wrote, must be weighed against the need for — and effectiveness of — DUI roadblocks. In other words, the ends justify the means.

The dissenting justices pointed out that the Constitution doesnt make exceptions: The sole question is whether the police had probable cause to stop the individual driver. As Justice Brennan wrote, That stopping every car might make it easier to prevent drunken driving…is an insufficient justification for abandoning the requirement of individualized suspicion… The most disturbing aspect of the Courts decision today is that it appears to give no weight to the citizens interest in freedom from suspicionless investigatory seizures.

Rehnquists justification for ignoring the Constitution rested on the assumption that DUI roadblocks were necessary and effective. Are they? As Justice Stevens wrote in another dissenting opinion, the Michigan court had already reviewed the statistics on DUI sobriety checkpoints/roadblocks: The findings of the trial court, based on an extensive record and affirmed by the Michigan Court of Appeals, he wrote, indicate that the net effect of sobriety checkpoints on traffic safety is infinitesimal and possibly negative.

Note: The case was sent back to the Michigan Supreme Court to change its decision accordingly. But the Michigan Supreme Court sidestepped Rehnquist by holding that DUI checkpoints, though now permissible under the U.S. Constitution, were not permissible under the Michigan State Constitution, and ruled again in favor of the defendant — in effect saying to Rehnquist, If you wont protect our citizens, we will. A small number of states have since followed Michigan’s example.

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Let’s say you had a drink or two but don’t feel you are under the influence of alcohol. However, you are arrested on suspicion of drunk driving and offered the choice of taking a breath or blood test (or, in some states, urine). Most DUI suspects choose the breath test — a choice which could doom your chances to prove your innocence. Consider the following advice when deciding which test to take:

1. If you smoke cigarettes, you may want to pass on that Breathalyzer mouthpiece the officer is handing you. Scientific research has shown that smoking can raise the test result considerably — enough to get you charged and convicted of drunk driving. This is because most breath analyzing devices will falsely report acetaldehyde as alcohol. Acetaldehyde is a compound produced in the liver in small amounts as a by-product in the metabolism of alcohol. However, scientists have found acetaldehyde concentrations in the lungs of smokers are far greater than for non-smokers. (Origin of Breath Acetaldehyde During Ethanol Oxidation: Effect of Long-Term Cigarette Smoking, 100 Journal of Laboratory Clinical Medicine 908). Translated: because breathalyzers cant tell the difference between alcohol and acetaldehyde, cigarette smokers will have a higher blood-alcohol reading.

2. If you are a diabetic with possible low blood sugar, you should also avoid the breath test. A well-documented by-product of hypoglycemia (low blood sugar) is a state called ketoacidosis, which causes the production of acetone — and acetone, like acetaldehyde, will be reported by the Brethalyzer as alcohol. In other words, the Breathalyzer will read significant levels of alcohol on a diabetics breath where there may be little or none. See Diabetes, Breath Acetone and Breathalyzer Accuracy: A Case Study, 9(1) Alcohol, Drugs and Driving (1993). To make matters worse, the reactions of a person in the early stages of a diabetic attack include dizziness, blurred vision, slurred speech, weakness, loss of coordination and confusion — the same symptoms which the patrol officer is looking for: the clear signs of a person under the influence of alcohol. And the officer’s observations are quickly followed by a failing performance on DUI field sobriety tests.

3. Are you on a low-carb diet? Or had nothing to eat in quite awhile? Avoid the Breathalyzer in a DUI investigation — for the same reasons stated in number 2. Perfectly normal, healthy individuals can experience temporary conditions of low blood sugar after consuming small amounts of alcohol, resulting in exaggerated but false symptoms of intoxication. Fasting glycemia can exist where a person has not eaten in 24 hours or has been on a low-carbohydrate diet. Production of glucose in the liver is stopped while the alcohol is broken down. Result: the blood sugar level will drop, affecting the central nervous system — and producing symptoms of a person under the influence of alcohol and a higher breath test result.

4. If you have acid reflux or have burped or belched before taking the Breathalyzer, offer to provide a blood sample instead. The reason is that you will be breathing alcohol from your stomach into your throat and oral cavity, where it will stay for 20 minutes or so — to be breathed directly into the breath machine. This is not a good thing. The machine’s computer is multiplying the amount of alcohol in the breath sample by 2100 times to provide a reading of the alcohol in the blood. This is because it assumes the sample came from the lungs, not the stomach, and the average person has 2100 units of alcohol in his blood for every unit of alcohol in his breath (called the partition ratio). The Breathalyzer does not know that your breath sample is not from your lungs and that it should not multiply the alcohol level by anything. Result: false high readings — and a DUI conviction.

5. When you see that officer in the rear-view mirror, don’t reach for the mouthwash or breath spray to disguise the drink or two you’ve had. Most of them contain significant levels of alcohol (Listerine, for example is 27% alcohol) and create a mouth alcohol effect: they remain in the oral cavity for 20 minutes or so — just long enough to be breathed into the Breathalyzer, with the same results mentioned in number 4. Some breath machines have a mouth alcohol detector, but these are highly unreliable.

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